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Hands off My Mental Activity
In upholding Obamacare, Judge Kessler undermines its supporters’ case.


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Rich Lowry

‘I can take care of my enemies all right,” Warren Harding once said. “But my friends, my damn friends, they’re the ones that keep me walking the floor nights!”

In the sense that so irked Harding, Judge Gladys Kessler is a great good friend of Obamacare. The U.S. district-court judge in Washington, D.C., delivered a more telling blow against the law in the course of ruling it constitutional than critics have in assailing it as a travesty.

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At issue is the individual mandate. Two other district-court judges have struck it down on the grounds that Congress doesn’t have the power under the Commerce Clause of the Constitution to require that everyone buy health insurance. If someone doesn’t purchase insurance, he hasn’t done anything. He isn’t engaged in activity that may or may not affect interstate commerce, but in sheer inactivity. Never before has anyone thought Congress could regulate nonevents.

The easy-to-grasp distinction between an activity and inactivity is one of the most powerful legal arguments of Obamacare’s opponents. But they hadn’t yet run up against a jurist as ingenious as Judge Kessler. She brushes the activity/inactivity distinction aside because not doing something is a choice and therefore “mental activity.”

Why hadn’t someone thought of that before? The sophists in Eric Holder’s Justice Department must be embarrassed that they didn’t dredge up this killer rejoinder themselves.

The fundamental question in the Obamacare case is whether there is any constraint on the ability of Congress to regulate economic activity. Do we still live in a system of dual sovereignty, split between the federal government and the states, as set out by the Constitution? Does the federal government only have certain enumerated powers? Is anything beyond its ambit? Judge Kessler’s argument is a ringing “no” on all three counts.

Judge Kessler, a liberal Clinton appointee, takes what has been a Commerce Clause case and practically makes it a matter for the First Amendment. It’s the most self-undermining defense of the constitutionality of a dubious statute since then–solicitor general Elena Kagan told the Supreme Court that under campaign-finance reform, the government could ban certain pamphlets. Kessler, like Kagan before her, does everyone the favor of clarifying the issue.

Judge Kessler writes, “It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not ‘acting,’ especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something.”

When President Obama is faulted during the next iteration of the Middle East crisis for his passivity, he can shoot back that he’s really quite active — he’s deciding not to do anything. We now know that this constitutes robust — muscular, even — activity.

Under the Kessler principle, there’s no non-conduct that the federal government can’t reach. Every day, most Americans engage in non-activities that affect interstate commerce. If you decide not to buy a house, not to buy a Chrysler, or not to buy a Snuggie, you’ve impacted interstate conduct through affirmative mental actions. We’ve gone from the Constitution giving Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes,” to regulating on the basis of the mental activities of individuals deciding not to do something.

Long ago, the Commerce Clause got stretched beyond recognition. In 1942, the Supreme Court used it to uphold a law penalizing a farmer for growing wheat in excess of his approved allotment, even though it was for his own consumption. At least the poor sap was doing something. According to Kessler, Congress could also punish him for deciding not to grow wheat.

Opponents of Obamacare say that if it’s blessed by the courts, there will no longer be any limiting principle on federal regulatory power. If that seems far-fetched, behold the mental activities of one Judge Gladys Kessler.

— Rich Lowry is editor of National Review. He can be reached via e-mail, [email protected] © 2011 by King Features Syndicate.



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